UNITED STATES v. GERVASI

UNITED STATES OF AMERICA, PLAINTIFF,v.JOHN GERVASI, MICHAEL ETTINGER, AND CHARLES SOTERAS, DEFENDANTS.

The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

The August 1982 Grand Jury returned a seven count indictment
against the defendants John Gervasi ("Gervasi"), Michael Ettinger
("Ettinger"), and Charles Soteras ("Soteras"), charging
violations of 18 U.S.C. § 371, 1343 and 1952. Gervasi and
Ettinger are attorneys admitted to practice in the State of
Illinois. In 1977, Soteras was a defendant in a criminal case in
the Circuit Court of Cook County, charged with car theft. Gervasi
and Ettinger represented Soteras on the car theft charge.

The federal indictment alleges that the three defendants
conspired to bribe a police officer, Daniel Furay ("Furay"), to
arrange for the dismissal of the car theft charges against
Soteras. The defendants have filed a number of pretrial motions
attacking the indictment, and also have moved to suppress key
evidence in the case. All of the parties have filed excellent
briefs in support of their positions. The Court rules on these
motions as follows.

I. Vindictive Prosecution

A. Facts

The defendants have moved to dismiss the indictment on grounds
of vindictive prosecution. The facts are complex, and present a
nest of Chinese boxes composed of three separate prosecutions.
The Court describes them here in as brief a fashion as
possible.*fn1

Soteras was charged with car theft in October, 1977. One of the
arresting officers was Furay. It is alleged that shortly after
the arrest, attorney Gervasi approached Furay to discuss the
Soteras case. Furay believed that Gervasi might offer a bribe,
and contacted the office of the Cook County State's Attorney
("state's attorney").

In its decision, the court held that since "one party to the
conversations had consented to the monitoring, neither the
Federal Constitution, nor the constitution of this State was
offended." 61 Ill.Dec. at 517-518, 434 N.E.2d at 1114-15.
However, the court also held that the Illinois Eavesdropping
Statute, Ill.Rev.Stat. 1977, ch. 38, §§ 14-1 and 14-5, had been
violated and evidence obtained in violation of Illinois law had
to be suppressed. The effect of the rulings was to make
inadmissible the bulk of the state's evidence.

The case was remanded to the circuit court for trial. Since the
defendants had requested a bench trial, their inalienable right
under Illinois law, Judge Pincham was to be the factfinder. On
August 25, 1982, five days before the case was to be called for
trial, the state moved for clarification of Judge Pincham's
earlier suppression order. The ASAs wished to determine whether
the suppressed materials could be used to prepare witnesses for
trial, and could be used at trial to refresh witnesses'
recollections of the events which had taken place nearly five
years before. Judge Pincham ruled that the suppressed evidence
could not be used for such purposes. The state did not seek leave
to appeal.

The ASAs thereupon contacted the federal prosecutors to discuss
the case. The federal prosecutors were told that, given Judge
Pincham's rulings, in the opinion of the ASAs the state case
against Gervasi and Ettinger was unproveable. The federal
prosecutors studied the state prosecution file, and attempted to
obtain additional information through federal grand jury
subpoenas but were unable to do so.

After further consideration, the federal prosecutors decided
that there was a jurisdictional basis to proceed with a federal
prosecution and that such a prosecution was warranted. The
evidence obtained from the state was presented to a federal grand
jury, and on September 14, 1982 an indictment was returned under
which the defendants faced a maximum total sentence of 35 years
incarceration. The state had moved before Judge Pincham to nolle
prosse the state charges, which motion was granted, three hours
earlier. The federal statute of limitations would have expired on
November 28, 1982, ten weeks after the federal indictment was
handed down.

The defendants presented to this Court exhibits and argument to
the effect that in numerous recent instances the state's attorney
has dropped state prosecutions before Judge Pincham in favor of
federal prosecutions for the same essential conduct. Further, the
defendants charged that in one case the state's attorney brought
an unprecedented motion designed to force Judge Pincham to recuse
himself. The motivation of the state's attorney, according to the
defendants, is to take criminal cases away from Judge Pincham
because he has the reputation of being a "defendant's judge."

The defendants allege several theories in support of the motion
to dismiss for vindictive prosecution:

1. The federal prosecution was designed and motivated
to penalize these defendants for their state court
success in exercising their statutory and
constitutional rights.

2. The institution of a federal prosecution under
such circumstances will deter other defendants from
exercising their rights.

3. The prosecution is an attempt to avoid and make
meaningless these defendants' rights to the greater
procedural and substantive protections afforded by
Illinois law, including the right to a trial by the
court without a jury, and the protection of the more
stringent state standards as to the admissibility of
overheard conversations.

4. The prosecution is an attack on the integrity of
the judiciary of the Circuit Court of Cook County.

5. The prosecution of these defendants now in federal
court, after they have run the gauntlet for five
years in state court, is inherently unfair and a
violation of due process.

B. Presumptions and Procedures

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94
S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court held that
"[t]o punish a person because he has done what the law plainly
allows him to do is a due process violation `of the most basic
sort.'" United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485,
2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v. Hayes,
434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). In
Pearce the Court found the appearance of judicial vindictiveness
when a defendant, having successfully won a new trial on appeal,
received a greater sentence upon retrial and conviction.
Blackledge was a case of the appearance of prosecutorial
vindictiveness where a defendant was charged with a higher
offense upon his exercise of his state statutory right to a trial
de novo after a conviction in an inferior court.

The Supreme Court reversed. At the outset, the Court said:
"This case involves presumptions." 102 S.Ct. 2485, 2487. Goodwin
was held to be distinguishable from Blackledge. In Blackledge,
the prosecution "upped the ante" by raising the charges upon the
successful exercise, after a complete trial, of the defendant's
right to appeal. In Goodwin, the heavier charges were brought in
a pre-trial setting after the defendant demanded a jury. The
Court noted that

a defendant before trial is expected to invoke
procedural rights that inevitably impose some
"burden" on the prosecutor. Defense counsel routinely
file pretrial motions to suppress evidence; to
challenge the sufficiency and form of an indictment;
to plead an affirmative defense; to request
psychiatric services; to obtain access to Government
files; to be tried by jury. It is unrealistic to
assume that a prosecutor's probable response to such
motions is to seek to penalize and to deter. The
invocation of procedural rights is an integral part
of the adversary process in which our criminal
justice system operates.

Id. 102 S.Ct. at 2493 (emphasis added).

The Court found that no presumption of prosecutorial
vindictiveness would lie in Goodwin because the facts did not
"pose a realistic likelihood of `vindictiveness.'" Id. 102 S.Ct.
at 2494, quoting Blackledge, supra, 417 U.S. at 27, 94 S.Ct. at
2102. Further, the Court set forth standards for deciding all
questions of prosecutorial vindictiveness. If a presumption does
lie (as it did in Pearce and Blackledge), the offending party
(the sentencing judge in Pearce; the prosecutor in Blackledge)
must come forward with objective evidence to rebut the
presumption of vindictiveness. Goodwin, supra, 102 S.Ct. at 2489,
2490 n. 8. If a presumption does not lie (as in Bordenkircher,
and Goodwin itself), then the defendant must come forward with
objective evidence proving "that the prosecutor's charging
decision was motivated by a desire to punish him for doing
something that the law plainly allowed him to do." Id. at 2494.
See also Id. at 2492 n. 12; 2494 n. 19. Since in Goodwin no
presumption would lie and the Fourth Circuit found no "actual
vindictiveness", no due process violation was established.

In an unpublished Order of January 26, 1983, this Court granted
defendants' request for a hearing on the motion to dismiss the
indictment on grounds of prosecutorial vindictiveness. In this
Order, the Court laid out ground rules for the hearing. First,
the Court held that the facts presented in the briefs submitted
by the parties showed that no presumption of prosecutorial
vindictiveness would lie in this case. Two independent sovereigns
— the state of Illinois and the United States — brought distinct
prosecutions. Each sovereign had the power to make prosecutorial
decisions without regard to the decision of the co-existing
sovereign. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3
L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct.
676, 3 L.Ed.2d 684 (1959). And see United States v. DeMichael,
692 F.2d 1059, 1061-62 (7th Cir. 1982) (no reasonable likelihood
of prosecutorial vindictiveness where separate sovereigns
institute their own prosecutions); United States v. Robison,
644 F.2d 1270, 1273 (9th Cir. 1981) (the involvement of separate
sovereigns tends to negate a vindictive prosecution claim). And
compare Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36
L.Ed.2d 714 (1973) (possibility of vindictiveness de minimis when
a new
sentence is imposed by different jury upon retrial); Colten v.
Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)
(possibility of vindictiveness does not inhere where superior
court imposes more severe sentence after conviction in trial de
novo; separate sentencing judges negates likelihood of
vindictiveness).

Further, the "response" to the defendants' motion to suppress
occurred pre-trial, cf. Goodwin, supra, 102 S.Ct. at 2493; and
the maximum penalty the defendants faced on the federal charges
was less than that under the state indictment. In sum, the facts
do not pose a realistic likelihood of vindictiveness. Blackledge.

Second, the Court instructed that the defendants, who labored
without a presumption in their favor, would have the burden of
persuasion on the motion and that they would have to tender
objective evidence to prove that actual vindictiveness motivated
the prosecutor. Goodwin, supra, at 2494 n. 19. The Court stated
that at the hearing on the motion, "the parties will not be
permitted to probe the subjective motives of those instigating
the instant prosecution."*fn3

C. Actual Vindictiveness

The defendants argue that the indictment in this cause should
be dismissed on grounds of prosecutorial vindictiveness. At the
hearing in this matter, defense counsel made clear to the Court
that their argument is not with the counsel for the federal
government in this case, who they believe to be most honorable
and ethical attorneys. Instead, they claim that the assistant
state's attorneys have acted outrageously, have punished the
defendants for their assertion of their statutory and
constitutional rights, and have broken the law in their attempts
to see these defendants convicted. In support of their motion,
the defendants rely on United States v. Krezdorn, 693 F.2d 1221
(5th Cir. 1982); and United States v. Burt, 619 F.2d 831 (9th
Cir. 1980).

In Krezdorn, the defendant was tried for forging immigration
documents and was convicted on several counts by a jury. On
appeal the Fifth Circuit reversed, holding that evidence of 32
additional forgeries not charged in the indictment should not
have been admitted under Fed.R.Evid. 404(b). United States v.
Krezdorn, 639 F.2d 1327 (5th Cir. 1981). The government then
reindicted the defendant on the counts he had been convicted of,
and added a new conspiracy count as well. The additional
forgeries which had been found inadmissible by the court of
appeals were alleged now as the overt acts in the conspiracy
count. The district court granted the defendant's motion to
dismiss the conspiracy charge on grounds of prosecutorial
vindictiveness and the Fifth Circuit affirmed.

Krezdorn is a case squarely in the Blackledge mold: where the
defendant successfully appeals his conviction and the prosecution
brings increased charges on retrial, a presumption of
prosecutorial vindictiveness will lie. The burden is then placed
upon the prosecution to rebut the presumption through the
presentation of objective evidence. The government was unable to
rebut the presumption in Krezdorn, so the conspiracy count was
dismissed. Though Krezdorn is an intelligent discussion of the
issues of prosecutorial vindictiveness, applying the precepts of
Blackledge and Goodwin in workmanlike fashion, it is not a
remarkable case. It also is not helpful*fn4 to the defendants
here, since in Krezdorn actual vindictiveness was presumed, while
in the case at bar the defendants must prove that the prosecution
acted with actual vindictiveness. Goodwin, supra, 102 S.Ct. at
2495.

The second case relied on by the defendants also does not
particularly aid them in establishing their right to relief here.
In Burt, California authorities investigated and initiated
prosecutions of defendants allegedly responsible for a
large-scale drug manufacturing and distributing operation.
Criminal charges were brought in state court in March, 1979. In
April of the same year, the state law enforcement authorities met
with federal officers (agents of the Drug Enforcement
Administration and assistant United States attorneys) to discuss
the possibility of the federal government's taking over the
prosecutions. By June, 1979, the state and federal authorities
had agreed that the defendants would be prosecuted by the federal
government.

The Burt court mentioned but did not decide two initial issues.
First, it noted that no case had dismissed an indictment on
grounds of vindictive prosecution where two separate sovereigns
initiated prosecutions. 619 F.2d at 837. Second, the court did
not address whether a presumption of vindictiveness would lie on
the facts of that case, but assumed that even if a presumption
would lie, "the government successfully rebutted any possible
inference of vindictiveness which could have arisen on the facts
of this case." Id. The court found that the decision to proceed
with a federal prosecution was made prior to the exercise of
procedural rights by the defendants. Furthermore,

there was no attempt to circumvent what the
defendants refer to as the more liberal California
law.

There is absolutely no evidence (nor even an
assertion) of a retaliatory motive based upon any
prior dealings between the state prosecutor and the
defendants and their counsel.

Id. at 838.

Burt is of limited support to these defendants, if it is of any
support at all. First, since handing down Burt the Ninth Circuit
has expressed further doubt on the possibility of a vindictive
prosecution claim succeeding when there are separate sovereigns
initiating the prosecutions.

We have previously expressed doubt as to whether a
prosecution could be condemned as "vindictive" when
the defendant's claim is that one sovereign is
punishing him for rights he asserted against a
different sovereign. Burt, supra, 619 F.2d at 837.
Though we do not now hold that a second prosecution
can never be vindictive when it follows a successful
defense in a foreign jurisdiction, we do hold that
the involvement of separate sovereigns tends to
negate a vindictive prosecution claim.

Second, the Goodwin Court expressly held that the pretrial
exercise of a procedural right, such as the "routine[ ] fil[ing
of] pretrial motions to suppress evidence," Goodwin, supra, 102
S.Ct. at 2493, does not raise a presumption of prosecutorial
vindictiveness. Thus the two key predicates for the Ninth
Circuit's even addressing the issue in Burt have been undercut.

Third, in Burt the court held that the defendants had not made
out a claim for prosecutorial vindictiveness, and the denial of
the motion to dismiss was affirmed. The language which would seem
to support defendants' legal theory in the case at bar — that
there had been no attempt to circumvent the more liberal state
law, and that there had been no assertion nor any evidence of a
retaliatory motive based upon the dealings between the state
prosecutors and defense counsel — is dicta.

Also probative of the vindictiveness of the state's attorney,
claim the defendants, are the initial refusal of the ASAs, based
on the fear of "judicial leaks," to seek a proper authorization
from a state judge; the pattern of the state dropping
prosecutions in cases before Judge Pincham and turning over the
matters to federal authorities; and the motion filed by the state
in another case to have Judge Pincham recuse himself because he
had made remarks and rulings demonstrating that he was a
"defendant's judge." These raise the inference, according to the
defendants, that the state wanted to strip them of their more
liberal rights under the state constitution and case law.

The defendants' "direct evidence" of vindictiveness is the
deposition testimony of Macellaio. This testimony was to the
effect that the state prosecutors dropped their case and asked
federal authorities to prosecute in order to get the case away
from Judge Pincham. The Court expresses some doubt about the
reliability of this testimony given the fact that neither the
demeanor nor trustworthiness of either Macellaio or Dernbach
could be evaluated from the cold deposition transcript presented
as an exhibit. Further, Dernbach has not been examined as to
whether he admits or denies the substance of this barroom
conversation.*fn7

In any case, all the evidence presented by the defendants, both
direct and circumstantial, is legally irrelevant to the
vindictive prosecution claim. They have not proven that the
federal prosecutors acted with actual vindictiveness in seeking
the federal indictment. And the defendants have admitted that
they do not seek to prove actual vindictiveness on the part of
the federal prosecutors, but instead ask this Court to find such
vindictiveness by the state's attorney.

In the case at bar, the defendants ask this Court to dismiss an
indictment, voted by a federal grand jury at the behest of the
prosecutorial arm of the executive branch, not for the acts of
the federal prosecutors but for the acts and motives attributable
to the state prosecutors. This would be punishing the federal
prosecutor who has acted fairly and above-board. There is no
precedent for such a request, the dictum in Burt notwithstanding.

This Court believes that as a theoretical matter the dictum in
Burt is not wrong. A case of vindictive prosecution could be made
out on proof that the federal prosecutors initiated a federal
prosecution with the vindictive motive of punishing certain
defendants for having exercised their rights under state law to
challenge the admissibility of evidence. But the case has not
been made out here. Absent a presumption in the defendants' favor
and proof of actual vindictiveness, "no due process violation has
been established." Goodwin, supra, 102 S.Ct. at 2495.

Finally, the defendants argue that it is just fundamentally
unfair and therefore a violation of due process for the state to
prosecute the defendants for four and one-half years to the point
of exhaustion, and then turn over the products of their efforts
to the federal prosecutors for another go-around. They say that
the government "with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing state of
anxiety and insecurity." Green v. United States, 355 U.S. 184,
187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). The defendants
recognize that this underlying policy behind the double jeopardy
clause of the Fifth Amendment is not directly applicable here,
but they urge the Court to apply the same principles in this
different context.

The Court understands the position of the defendants. However,
the power of separate sovereigns to prosecute the same individual
for the same acts clearly exists. The legislatures of the two
sovereigns have provided for the possibility for both
prosecutions to have been pursued. This Court on these facts
lacks the constitutional power to grant the relief defendants
seek. Defendants' motion to dismiss on grounds of vindictive
prosecution is denied.*fn9

A motion to dismiss based on selective prosecution must show
both "that the defendant had been singled out for prosecution
while others similarly situated had not been prosecuted and that
the Government's discriminatory selection was based upon an
impermissible ground." United States v. Heilman, 614 F.2d 1133,
1138 (7th Cir.), cert. denied, 447 U.S. 922, 100 S.Ct. 3014, 65
L.Ed.2d 1114 (1980). The conscious exercise of some selectivity
in enforcement is not unconstitutional "so long as `the selection
was [not] deliberately based upon an unjustifiable standard such
as race, religion, or other arbitrary classification.' Oyler v.
Boles, 368 U.S. 448, 456 [82 S.Ct. 501, 505, 7 L.Ed.2d 446]
[1962]." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663,
668, 54 L.Ed.2d 604 (1978). "Fundamental to the defense is proof
that the decision to prosecute was based on impermissible
considerations such as race, religion, or the desire to penalize
the exercise of constitutional rights." United States v. Peskin,
527 F.2d 71, 86 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97
S.Ct. 63, 50 L.Ed.2d 79 (1976).

The defendants' mention of Powell and Porcelli — cases where
attorneys were prosecuted in state court but the federal
authorities declined to prosecute — is a peculiar argument for
these defendants to make. First, these defendants have argued
elsewhere that a federal prosecution following upon the heels of
a state prosecution evidences prosecutorial vindictiveness.
Second, they also have asserted that a subsequent federal
prosecution violates the Petite policy and therefore should be
barred (see Part IV, infra).

Even ignoring the apparent inconsistencies in the positions
taken by these defendants, they make no showing demonstrating a
right to discovery or a hearing on the selective prosecution
claim. Cf. United States v. Falk, 479 F.2d 616 (7th Cir. 1973)
(en banc). They have not argued that these attorneys are being
prosecuted for reasons of race or religion, and the suggestion
that the prosecution was instigated only because they are lawyers
("other arbitrary classification", Oyler v. Boles, supra) is
unsupported.

The defendants seem to contend that they are being prosecuted
because they successfully moved to suppress evidence in the state
court prosecution, and that the instant prosecution shows a
desire to penalize the exercise of constitutional rights. Cf.
United States v. Peskin, supra. The defendants have confused
selective and vindictive prosecution. The latter defense
addresses prosecutorial actions taken in response to the exercise
of rights by the defendant after a defendant has been charged
with an offense. Selective prosecution, on the other hand, deals
with the decision to prosecute a person based on an immutable
personal characteristic or in response to something he or she had
done in the society at large prior to the institution of charges.
See, e.g., United States v. Heilman, supra (selective prosecution
urged when a lobbyist against the adoption of the new copyright
law was charged with criminal copyright infringement); United
States v. Johnson, 577 F.2d 1304 (5th Cir. 1978) (prominent tax
protestor urges selective prosecution defense to criminal tax
charges); United States v. Falk, supra (Vietnam war protestor
prosecuted for failing to possess a draft registration card).

The second argument is that the federal prosecutors should not
be permitted to proceed in this case because they have acted as
the willing handmaidens of the state's attorney. A federal court,
defendants say, should not permit itself to become a dumping
ground for a piqued state prosecutor. This is the "cooperation"
or "amalgamation of efforts" argument.

The supervisory powers of the federal court are used to control
the conduct of federal officers having business before the Court.
In enjoining the conduct of federal officers who violated the
Federal Rules of Criminal Procedure, the Supreme Court said:

[W]e have then a case that raises not a
constitutional question but one concerning our
supervisory powers over federal law enforcement
agencies. Cf. McNabb v. United States . . .

Federal courts sit to enforce federal law; and
federal law extends to process issuing from those
courts. The obligation of the federal agent is to
obey the [federal] Rules.

Rea v. United States, 350 U.S. 214, 216-17, 76 S.Ct. 292,
293-294, 100 L.Ed. 233 (1956). It has been held that "Rea does
not authorize the radical measure of federal interference with
state proceedings where federal agents actually violated no
federal Rules, even though it may have been their intent [to] do
so." DeMaria v. Jones, 416 F. Supp. 291, 298 (S.D.N.Y. 1976)
(emphasis added) (district court refused to enjoin federal
agents, alleged to have violated federal law, from testifying in
state criminal action).

The supervisory power of the federal court simply cannot be
extended to punish the activities of state prosecutors. It is a
power to be used sparingly in supervising the activities of
"federal law enforcement agencies." Rea, supra, 350 U.S. at 217,
76 S.Ct. at 294. "The supervisory power merely permits federal
courts to supervise `the administration of criminal justice'
among the parties before the bar. McNabb v. United States, supra,
[318 U.S.] at 340 [63 S.Ct. at 612]." United States v. Payner,
447 U.S. 727, 735 n. 7, 100 S.Ct. 2439, 2446 n. 7, 65 L.Ed.2d 468
(1980) (emphasis added) (supervisory power cannot be used to
suppress evidence illegally seized by federal officers from
non-defendant). The defendants' "punish the state" argument looks
only to the activities of the state officials, but these
individuals are not "parties before the bar." Id. Cf. United
States v. Cortina, 630 F.2d 1207 (7th Cir. 1980) (court affirms
exercise of supervisory power to suppress evidence seized
pursuant to search warrant obtained based on deliberate lie by
FBI agent to magistrate). Absent an action brought under the
civil rights laws, see, e.g., 42 U.S.C. § 1983, this Court cannot
punish these acts.

The other argument is both more interesting and problematic.
Here the defendants assert that the federal prosecutors'
activities are inextricably intertwined with the illegal acts of
the state prosecutors, and this should not be permitted. It is
important first to appreciate the context in which the question
arises. The Court has noted above that as a constitutional
matter, there is no violation of the double jeopardy clause of
the Fifth Amendment for the federal government to prosecute a
person for the same basic acts for which the person has been
prosecuted and punished by the state government. Abbate, supra;
Bartkus, supra; United States v. DeMichael, supra; United States
v. Robison, supra. There is no presumption of unfairness or
impropriety, therefore, when the federal
prosecutor initiates criminal proceedings against a person who
previously has been prosecuted by the state.

It follows, as an incident of the constitutional
separation of powers, that the courts are not to
interfere with the free exercise of the discretionary
powers of the attorneys of the United States in their
control over criminal prosecutions.

Newman and Cox obviously deal with different fact patterns from
those at bar, but the principle set forth in those cases remains
true. There exists a delicate relationship between the judiciary
and the executive regarding judicial review of prosecutorial
decisions and activities. Certain inroads on the independence of
the prosecutor's activities have been made. (See, e.g.,
discussions supra of dismissal of indictments based on vindictive
or selective prosecution, and for prosecutorial abuse before the
grand jury.) But these are rare instances of the judiciary's
interference with what remains the prosecutor's realm.

This discussion establishes the context in which the
defendants' motion to dismiss the indictment on the basis of the
Court's supervisory power must be reviewed. Testimony has been
received that the federal prosecutors were not made aware of the
details of this case until after Judge Pincham's ruling some five
days before trial was to begin. Further, the defendants have
conceded that the federal prosecutors themselves have done
nothing wrong.

Instead, they argue that the federal prosecutors may not act as
the handmaidens of the state's attorney; that is, they may not be
the recipients of the benefits of the misdeeds of the state
prosecutors. The defendants must concede that the mere
cooperation of the state and federal prosecutors is not improper.
See Rinadi v. United States, 434 U.S. 22, 27 n. 13, 98 S.Ct. 81,
84 n. 13, 54 L.Ed.2d 207 (1977) (per curiam) (noting benefits
derived from cooperation between federal and state prosecutors);
Bartkus v. United States, 359 U.S. 121, 123, 79 S.Ct. 676, 678,
3 L.Ed.2d 684 (1959) (cooperation between state and federal
prosecutors not improper). United States v. Burt, supra, the case
upon which defendants so heavily rely, itself was a case where
the state and federal authorities discussed the facts of the
potential prosecution for months prior to reaching an agreement
that the state would forego prosecution in favor of the federal
government.

The defendants claim that the so-called Petite policy was
violated by the federal government in this case and therefore the
indictment should be dismissed. The Petite policy grew out of the
Justice Department's recognition of the power of the government,
unlimited by the constraints of the double jeopardy clause of the
Fifth Amendment, see Abbate v. United States, 359 U.S. 187, 79
S.Ct. 666, 3 L.Ed.2d 729 (1959); and Bartkus v. Illinois,
359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), to prosecute a
person who already had been convicted on the same basic facts in
a state court prosecution. The policy prohibits successive
prosecutions without prior authorization of "the appropriate
Assistant Attorney General whenever there has been a prior state
proceeding . . . resulting in (1) an acquittal, (2) a conviction,
or (3) a dismissal or other termination of the case on the
merits." The policy does not apply "where the state proceeding
did not progress to the stage at which jeopardy attached or was
terminated in a manner that would not, under the Double Jeopardy
Clause, preclude a further state prosecution for the same
offense" (Government's Response, Ex. 3).

The Petite policy was not violated in the instant case. The
state prosecutions were terminated prior to jeopardy attaching
since no jury ever was impaneled, no witnesses were sworn, and no
testimony was heard. The state would have been free to reindict
the defendants even after it moved to nolle prosse (assuming the
statute of limitations had not run).

Furthermore, these defendants would not be able to assert the
Petite policy as a bar to this federal prosecution even if the
policy had been violated. Neither Thompson v. United States,
444 U.S. 248, 100 S.Ct. 512, 62 L.Ed.2d 457 (1980) (per curiam); nor
Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d
207 (1977) (per curiam), hold that the Petite policy allows the
defendant to interpose it as a bar, though "the federal courts
should be receptive . . . when the Government seeks leave to
implement that policy." Id. at 29, 98 S.Ct. at 85 (emphasis
added). It has been clearly held that a prosecution undertaken
even in arguable violation of the policy is not void. United
States v. Hutul, 416 F.2d 607, 626-27 (7th Cir. 1969), cert.
denied, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499 (1970). See
also United States v. Snell, 592 F.2d 1083, 1087-88 (9th Cir.),
cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979);
United States v. Nelligan, 573 F.2d 251, 255 (5th Cir. 1978).

The defendants' motion to dismiss for an alleged violation of
the Petite policy is denied. The policy was not violated. Even if
it had been violated, it would not bar this prosecution.

V. Technical Attacks on the Indictment

Defendant Ettinger has filed a motion to dismiss the indictment
claiming that it is insufficient on its face. He urges three
arguments in support of the motion.

1. The long distance telephone calls referred to in
the indictment were not made by Ettinger and
therefore have no connection to him.

2. The long distance calls do not relate to any fraud
charged, and therefore the indictment does not allege
a crime committed by Ettinger.

Next, Ettinger has stated that the telephone calls do not
relate to any fraud, and therefore the indictment fails to set
forth any crime. He cites United States v. Maze, 414 U.S. 395, 94
S.Ct. 645, 38 L.Ed.2d 603 (1974) for support. Maze held that in
an action brought under 18 U.S.C. § 1341, the proof at trial must
show that the alleged mailings were "sufficiently closely related
to [the defendant's] scheme to bring his conduct within the
statute." Id. at 399, 94 S.Ct. at 648. The indictment here
clearly states that the long distance calls allegedly were made
"for the purpose of executing the . . . [bribery] scheme." The
indictment sufficiently charges the crimes. It is for trial to
determine if the proof will support the charges.

Finally, Ettinger cites United States v. Curtis, 506 F.2d 985
(10th Cir. 1974), for the proposition that the indictment is
packed with surplusage meant to hide the fact that the
allegations are vague and confusing. Curtis, decided under the
Sixth Amendment and Fed.R.Crim.P. 7(c)(1), held the indictment in
that case to be insufficient because there was no "substantial
indication of the nature or character of [the] scheme or artifice
to defraud." Id. at 990. The indictment here clearly states that
the scheme devised by the defendants had as its intended purpose
the bribery of a police officer. The indictment is neither vague
nor confusing. Ettinger's motion to dismiss the indictment is
denied.

The legal theory the defendants rely upon to support the motion
to suppress is not entirely clear to the Court. They have
admitted that the Fourth Amendment has not been violated. It is
also true that the federal wiretap statute explicitly permits the
introduction of this kind of evidence. 18 U.S.C. § 2511(2)(c).
The defendants instead argue a kind of "silver platter" doctrine:
it would be entirely improper, they say, for state officials to
violate state law and then hand over the evidence to federal
authorities for admission in federal court. Based on this theme
and the cases cited by the defendants, the Court believes that
the defendants ask the Court to employ its supervisory powers to
exclude this evidence. This would be in keeping with the oldest
usage of the federal courts' supervisory powers. See McNabb v.
United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943)
(statements excluded where defendants were not brought before a
judicial officer for two days after arrest).

The government and the defendants agree as to the question at
issue: is evidence obtained by state officials in violation of
state law admissible in a federal proceeding if the evidence was
not obtained in violation of federal law?

Two cases from other circuits have decided this question on
very similar facts. United States v. Nelligan, 573 F.2d 251 (5th
Cir. 1978); United States v. Shaffer, 520 F.2d 1369 (3d Cir.
1975) (per curiam), cert. denied, 423 U.S. 1051, 96 S.Ct. 779, 46
L.Ed.2d 640 (1976). In Nelligan, a Florida detective recorded his
telephone conversation with the defendant in violation of Florida
law. The recording was found admissible in federal court: "The
applicability of federal law is not affected by the fact that a
state agent rather than a federal agent is the party who is
alleged to have violated the state statute." 573 F.2d at
253.*fn13

In Shaffer, the defendant moved to suppress recordings of
telephone conversations made in violation of Delaware law, though
there had been no violation of federal law. The defendant argued
that the federal courts, by admitting such "tainted evidence,"
should not be seen to approve violations of Delaware law by
Delaware officers. The Third Circuit unequivocally rejected the
argument and held that the evidence was admissible.

The defendants have attempted to distinguish Nelligan and
Shaffer. First, they say that in both cases the federal
authorities participated in the investigations, whereas in the
case at bar the state authorities investigated and prosecuted the
case for four and one-half years prior to the entrance of the
federal authorities.*fn14 Second, they argue that in neither of
the cases did the prosecuting agencies submit themselves to state
authorities where they received adverse rulings, again in
contradistinction to the facts here.

The defendants have brought to the Court's attention two series
of cases which they contend support their position. The first
group is composed of three cases from the Supreme Court where
evidence was excluded from a federal prosecution. Each case is
clearly distinguishable on meaningful grounds. Rea v. United
States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956) (federal
officers who seized evidence in violation of federal law enjoined
from testifying in state court); Benanti v. United States,
355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957) (evidence obtained by
state officials in violation of federal law inadmissible in
federal court); Elkins v. United States, 364 U.S. 206, 80 S.Ct.
1437, 4 L.Ed.2d 1669 (1960) (evidence seized by state officers in
violation of federal constitution inadmissible in federal court).
In all these cases the evidence was seized in violation of
federal law. The evidence obtained in this case admittedly was
obtained in accordance with federal law. Thus these cases are
inapplicable.

If a state should set forth procedures more exacting
than those of the federal [wiretapping] statute,
however, the validity of the interceptions and the
orders of authorization by which they were made would
have to comply with that test as well.

United States v. Marion, supra, 535 F.2d at 702 (emphasis in
original).

Since a state's protection of privacy normally
reflects principles central to its social and
governmental order, our failure to respect its more
stringent protection of privacy rights would not only
violate principles of federalism, but encourage state
and federal law enforcement officials to by-pass
state law and to engage in federal forum-shopping of
tainted evidence.

United States v. Sotomayor, supra, 592 F.2d at 1225.

This language would seem to support defendants' argument that
if the state affords greater protections to a person than does
the federal government, a federal court must respect these
state-created rights and rule inadmissible evidence obtained in
violation of state but not federal law.

All of the Second Circuit cases adjudged challenges by
defendants to the admissibility of wiretap evidence obtained
pursuant to Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. § 2510, et seq. ("Title III").
These challenges rested on the allegations that Title III
authorization was sought from state judges but the requirements
of state wiretap law were not met. The defendants moved to
suppress the introduction of such evidence in federal
prosecutions.

A state prosecutor may apply to a state court for authorization
to intercept non-consensual conversations, "and such judge may
grant in conformity with section 2518 of this chapter and with
the applicable State statute an order authorizing" such
interception. 18 U.S.C. § 2516(2) (emphasis added). The effect of
this section is to adopt as a part of federal law the more
stringent standards (if any) of the state wiretap law where an
application has been made to a state court. If evidence was
obtained in violation of "state law" (made federal law by Title
III's incorporation provision), the evidence is inadmissible in
federal court. See, e.g., United States v. Manfredi, supra, 488
F.2d at 598 n. 7.

This is a statutory protection afforded by Congress to those
who come within the terms of the statute. Title III is addressed
to the interception of wire or oral communications where there
has not been one-party consent. It is uncontested that Officer
Furay consented to the interception in this case. As mentioned
above, Congress specifically provided that intercepted
conversations are not inadmissible where there did exist
one-party consent. 18 U.S.C. § 2511(2)(c).

For those who do not come within the terms of Title III — such
as the defendants in this case — the added protections afforded by
the Congressional adoption of the more stringent state standards
do not exist. Though the language of some of the Second Circuit
cases would seem to support defendants' position that the more
stringent state standards govern admissibility in every case
(whether the case implicates evidence obtained pursuant to Title
III or not), the cases have no application to situations outside
the scope of the federal statute.

The Fifth Circuit in Nelligan, supra, explicitly distinguished
two of the cases cited by the defendants here, Rizzo and
Manfredi, on these precise grounds:

[T]he Second Circuit's conclusion that state law
governs the validity of warrants issued by state
courts is in no way inconsistent with the general
rule that federal law governs the admissibility of
wiretap evidence in federal criminal cases, because
the federal statute includes the relevant state law
in the context of state court authorizations.

Nelligan, supra, 573 F.2d at 254. Since the Florida detective
consented to the recording and acted under color of state law,
see 18 U.S.C. § 2511(2)(c), "the interception was valid under
federal law, and properly admitted at defendant's trial." Id.

This is precisely the issue here. The cases cited by the
defendants are inapplicable. No federal statute, constitutional
provision, or policy bars the introduction of the evidence in
this case.

The defendants have cited to the Court the words of Mr. Justice
Brandeis, writing eloquently in dissent:

In a government of laws, existence of the government
will be imperilled if it fails to observe the law
scrupulously. . . . If the Government becomes a law
breaker, it breeds contempt for the law; it invites
every man to become a law unto himself; it invites
anarchy. To declare that in the administration of the
criminal law the end justifies the means — to declare
that the Government may commit crimes in order to
secure conviction of a private
criminal — would bring terrible retribution.

Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575,
72 L.Ed. 944 (1928). The Court believes these words have great
power and meaning and that they express values of fundamental
importance in our system of laws. But Justice Brandeis' message
does not bear on the issue presented here, where the federal
government has not been a law breaker but has observed the law
scrupulously. For the reasons given above, the motion to suppress
evidence must be denied.*fn15

THEREFORE IT IS ORDERED that

(1) Defendants' motions to dismiss the indictment are denied.

(2) Defendants' motion to suppress evidence is denied.

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